Editor’s note: This is the second in a two-part series about grand juries in Pennsylvania.
Two major child sex-abuse scandals in Pennsylvania have highlighted the conflicts in attorney-client representation that can arise during grand jury proceedings between the interests of organizations under investigation by law enforcement and the interests of organizational employees, officers and agents also under investigation.
In one instance, questions have been raised about former Pennsylvania State University General Counsel Cynthia Baldwin’s role in representing the university and its officials during grand jury testimony before a grand jury investigating former assistant football coach Jerry Sandusky and his sexual abuse of youth at Penn State facilities.
Former athletic director Tim Curley and former vice president of business and finance Gary Schultz, who are now facing criminal charges for endangering the welfare of children, perjury and other alleged crimes, said they thought Baldwin was representing them, while Baldwin has since said she was representing the university when she was allowed to sit in on the two men’s testimony, The Legal previously reported.
Baldwin also told investigators hired by Penn State that she told the two men they could hire their own counsel, The Legal previously reported.
Schultz has filed a praecipe for a potential legal malpractice lawsuit against Baldwin.
In another instance, the first Catholic Church official in the country to be convicted of harming sexual-abuse victims whose abuse he was responsible for investigating did not get his own counsel paid for by the Archdiocese of Philadelphia until after testifying several times in front of an investigating grand jury, The Legal previously reported.
During pretrial proceedings in the criminal case of Monsignor William J. Lynn, the presiding judge said the archdiocese had its own attorney-client privilege regarding communications between Lynn and outside counsel at Stradley Ronon Stevens & Young hired by the archdiocese, The Legal previously reported.
Each volume of grand jury testimony showed that when Lynn was asked at the start of his testimony if he was represented by his counsel, an attorney from Stradley Ronon answered he was representing Lynn, The Legal previously reported. But Philadelphia Court of Common Pleas Judge M. Teresa Sarmina said there was some kind of conflict between Lynn’s interests personally and the archdiocese’s interests.
With the installation of indicting grand juries in Pennsylvania for cases involving witness intimidation, attorneys said the issue of conflict between the interests of organizations and the interests of those organizations’ employees, officers, directors or agents is likely to become more prevalent.
If indicting grand juries are used only for cases involving homicides and more violent crime, such conflicts are not as likely to happen, but such conflicts are likely to occur assuming that indicting grand juries start getting used more, criminal defense attorney Michael J. Engle, of the Law Offices of Michael J. Engle in Philadelphia, said.
There is a lack of familiarity in state court with conflict issues involving corporate representation, corporate officers, corporate employees and corporate directors, both with investigating grand juries that are not commonly used and with indicting grand juries that have just started, Engle said.
“The problem is that prosecutors and judges and defense lawyers, who are not familiar with federal criminal practice, are not schooled in these issues … and they don’t know how to handle them,” Engle said.
“We’re going to need development in the body of Pennsylvania law,” he added.
If an organization is the target of a grand jury but an employee is not, or an employee is the target of a grand jury but an organization is not, it is problematic for a lawyer to represent both the organization and the employee, Engle said.
If neither the employee nor the company is a target of the grand jury, but someone else is, it might be a waiveable conflict for an attorney to represent both, Engle said.
R. Bruce Manchester, a criminal defense attorney with Manchester & Associates in Centre County who has represented several clients in state-level investigating grand juries, said the primary duties of attorneys representing clients appearing before grand juries are to protect them from criminal exposure, weigh whether the evidence the clients can offer is inculpatory, and consider whether they should advise their clients to invoke their Fifth Amendment privilege against self-incrimination and whether to pursue some kind of immunity from prosecutors for inculpatory testimony.
Immunity includes general immunity from prosecution no matter what the source of information is or use immunity from prosecution based upon a client’s own testimony, Manchester said.
“If you have an individual coming to you from a corporation, you have a duty to inquire who is the actual client,” Manchester said.
It can seem like an “innocuous question, so damn simple that anybody could figure it out,” Manchester said, but it is much more complicated if the representation involves an organization that might be charged as a corrupt organization as well as individuals connected to the organization.
But having clarity on who the client is is important because of the rule that attorneys must represent their clients with zeal and anybody else’s interests “be damned,” Manchester said.
The “higher on being participatory in the alleged criminal scheme, the more you need a lawyer,” Manchester said.
The Penn State case and the Archdiocese of Philadelphia case show that counsel have to be extremely strong and extremely careful anytime they are in a situation of representing an entity involved in a grand jury proceeding and there are also individuals involved, said Jeff Lindy, a criminal defense attorney with Lindy & Tauber in Philadelphia.
The care and strength is outlining exactly who the lawyers represent to the people involved, Lindy said.
Lynn is Lindy’s former client in an attorney-client relationship that started after Lynn testified before an investigating grand jury.
Lawyers deal with the officials of an organization mostly, Lindy said, so “it takes a strong person to look that person in the eye and say, ‘I don’t represent you. I represent the institution,’” Lindy said.